Commentary : Pardons Are Prerogative of the President Alone : Executive privilege: Deliberations on freeing of Puerto Rican militants are for executive eyes only.

With the help of the 106th Congress, President Clinton may yet do the impossible. He may succeed in giving executive privilege a good name. His refusal to disclose internal deliberative documents concerning conditional clemency for 16 members of a militant Puerto Rican independence group is not merely permissible. It is essential to the proper working of the separation of powers.

In issuing a subpoena for internal deliberations on the pardons for members of the Armed Forces of National Liberation, or FALN, Congress has inserted itself into one of the rare constitutional functions that is vested completely and exclusively in the president. It is a function immune to judicial and congressional review. In the landmark 1803 decision Marbury vs. Madison, Chief Justice John Marshall--even while asserting the ordinary power of judicial review of the executive--acknowledged the existence of certain powers as to which the president is “accountable only to his country in his political character and to his own conscience.” With regard to such powers, he said, “whatever opinion may be entertained of the manner in which executive discretion may be used, still there exists, and can exist, no power to control that discretion.”

As Alexander Hamilton explained in the Federalist Papers, the framers deliberately chose to exclude Congress from any role in the pardon process. Because of the president’s unique accountability as an individual, Hamilton argued, he was the only one likely to attend sufficiently both to the appeal of mercy and to the danger of granting clemency too easily. In contrast, legislators “generally derive confidence from their numbers” and “might often encourage each other in an act of obduracy and might be less sensible to the apprehension of suspicion or censure for an injudicious or affected clemency.” In other words, it is too likely that legislators will either encourage each other’s callousness or dodge accountability for a grant of mercy that is undeserved.

Of course, no American would want the president to exercise even his powers of unfettered discretion without advice. And it is precisely to protect the president’s access to the most frank and candid advice available that the Supreme Court has recognized the constitutional doctrine of executive privilege. Chief Justice Warren Burger made this point plainly in United States vs. Nixon: “A president and those who assist him must be free to explore alternatives in the process of . . . making decisions and to do so in a way many would be unwilling to express except privately.” In the context of the pardon process, it could hardly be easier to imagine the wide array of factors that could lead officials of the executive branch to temper their genuine support either for or against leniency, unless their advice were protected from involuntary disclosure.

Congress is entitled to overcome claims of executive privilege when its own institutional responsibilities outweigh a president’s general interest in confidentiality. In this case, however, it has no institutional responsibilities. It cannot legislate with regard to the president’s criteria for pardons. It cannot regulate the president’s access to information regarding pardons. Even the president’s enemies have accused him of no more than political motivation in his judgment. There is not even a rumor to investigate of actual wrongdoing in the granting of clemency or in the deliberative process.

The people of the United States are entitled, in the political sense, to know the president’s thinking with regard to his unusual grant of clemency. They were equally entitled to know why President Ford pardoned President Nixon, why President Carter pardoned the Vietnam draft resisters, why President Reagan pardoned the FBI agents who burglarized the office of Daniel Ellsberg’s psychiatrist’s office and why President Bush pardoned six Iran-Contra defendants. Yet in making these decisions, each president rests on his own judgment. Whether any such decision follows or ignores the advice of any Cabinet member or civil servant is legally, morally and, one hopes, politically irrelevant.